UNITED STATES, Appellee

v.
Daniel V. TREW, Machinists Mate First Class
U.S. Navy, Appellant
No. 09-0414
Crim. App. No. 200800250
United States Court of Appeals for the Armed Forces
Argued December 7, 2009
Decided February 25, 2010
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER and RYAN, JJ., joined. STUCKY, J.,
filed a separate opinion concurring in the result.
Counsel

For Appellant: Lieutenant Brian D. Korn, JAGC, USN (argued);

Captain S. Babu Kaza, USMC.
For Appellee: Lieutenant Timothy H. Delgado, JAGC, USN
(argued); Brian K. Keller, Esq. (on brief); Major Elizabeth A.
Harvey, USMC.
Military Judge:

Patricia J. Battin

This opinion is subject to revision before final publication.

United States v. Trew, No. 09-0414/NA

Judge ERDMANN delivered the opinion of the court.
Machinists Mate First Class Daniel V. Trew was charged
with committing indecent acts on a female under sixteen years of
age on divers occasions.

At a contested general court-martial,

he was convicted by a military judge of the lesser included

offense of assault consummated by a battery upon a child under
sixteen years of age.

Trew was sentenced to eighteen months

confinement and a bad-conduct discharge.

The convening

authority approved the sentence and the United States NavyMarine Corps Court of Criminal Appeals affirmed the findings and
sentence.

United States v. Trew, 67 M.J. 603, 606 (N-M. Ct.

Crim. App. 2008).

When the phrase on divers occasions is removed from a
specification, the effect is that the accused has been found
guilty of misconduct on a single occasion and not guilty of the
remaining occasions.
190 (C.A.A.F. 2005).

United States v. Augspurger, 61 M.J. 189,

If there is no indication on the record

which of the alleged incidents forms the basis of the

conviction, then the findings of guilt are ambiguous and the
Court of Criminal Appeals cannot perform a factual sufficiency
review.

United States v. Walters, 58 M.J. 391, 396-97 (C.A.A.F.

2003).

United States v. Wilson 67 M.J. 423, 428 (C.A.A.F.

2009).

United States v. Trew, No. 09-0414/NA

We granted review in this case to determine whether the
military judges clarification immediately following the
announcement of the findings resulted in an ambiguous finding,
and if so, whether the charge must be dismissed under United
States v. Walters and its progeny.1

We hold that the findings of

the military judge were ambiguous and therefore the lower court
could not conduct a proper appellate review under Article 66,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866 (2006).2
Background
The charges against Trew arose out of allegations made by
his stepdaughter, KT.

KT testified that she awoke at about four

or five in the morning on September 26, 2006, to find Trew

touching the bottom of my butt, near my leg.

KT testified

that Trew was rubbing her legs, the inside of her thigh, and her
butt.

KT said that she knew it was Trew because she looked at

We granted the following issue:

Whether, in light of United States v. Walters, 58 M.J.
391 (C.A.A.F. 2003) and United States v. Seider, 60
M.J. 36 (C.A.A.F. 2004), the charge and specification
must be dismissed with prejudice, because the lower
court could not conduct a proper appellate review
under Article 66 and double jeopardy prevents a
rehearing. See United States v. Wilson, 67 M.J. 423
(C.A.A.F. 2009).

United States v. Trew, 68 M.J. 150 (C.A.A.F. 2009) (order

granting review).
2

We do not address the lesser included offense issue raised by

Judge Stuckys concurring opinion as the issue was not raised or
briefed by the parties nor was it specified by this court.
3

United States v. Trew, No. 09-0414/NA

him when she woke up.

When KT told Trew to get out of her room,

he said he was sorry and left.

Trew returned to KTs room

before he left for work that morning and apologized to her

again.
KT also testified that when she awoke to Trew touching her
on the morning of September 26, it jogged her memory and she
remembered Trew touching her in the same manner the day before.
When pressed about how she knew it was Trew who had been
touching her on the morning prior to September 26, KT explained
that she knew it was Trew because of the size of his hands.
reported these incidents to her mother the next day.

KT

KTs

mother testified that Trew admitted that he touched KT twice, on

two different occasions.
The Governments opening arguments referenced Trews
touching [of KT] on numerous occasions.

In closing, the

Government argued, [y]ouve heard testimony, youve received

evidence in this case, maam, how in the fall of 2006, on at
least two occasions, [KT] . . . was indecently contacted by her
adopted father, Petty Officer Trew.

The Government also

referenced comments that Trew allegedly made to his wife that

[n]ot only did I do that on the 26th, but I did that on the
night or the two nights before that.
At the conclusion of the findings portion of the courtmartial, the military judge announced the findings as follows:

United States v. Trew, No. 09-0414/NA

Of the Specification under the Charge:

Not Guilty, but Guilty

of the lesser included offense of Article 128, assault

consummated by a battery upon a child under 16 years, paragraph
54(b)(3)(c) in the Manual for Courts-Martial.

Immediately

following the announcement of the findings, the military judge

addressed a defense motion for a continuance relating to the
sentencing phase of the trial.

The trial counsel then asked the

military judge, [b]efore we recess, though, maam, one

question.

On your findings of the LIO under Article 128, is

that on divers occasions as charged or is that just for -- for

one event or -- will you clarify that further for us?

The

military judge replied, [i]t is on the one occasion.

There

was no further discussion or clarification as to which occasion

the military judge was referring to in her findings.
On appeal to the Court of Criminal Appeals, Trew argued
that the military judges findings were ambiguous and his
conviction should be set aside under Walters.
603.

Trew, 67 M.J. at

In Walters this court held that a Court of Criminal

Appeals could not conduct a factual sufficiency review of an

accuseds conviction when the findings of guilty and not guilty
do not disclose the conduct upon which each of them was based.
58 M.J. at 397.

Relying on United States v. Perkins, 56 M.J.

825 (A. Ct. Crim. App. 2001), a pre-Walters United States Army
Court of Criminal Appeals decision, the lower court

United States v. Trew, No. 09-0414/NA

distinguished Walters and affirmed the findings except the words
on divers occasions.3

Trew, 67 M.J. at 606.

The court in Perkins had held that [t]he announcement of a

verdict is sufficient if it decides the questions in issue in
such a way as to enable the court intelligently to base judgment
thereon and can form the basis for a bar to subsequent
prosecution for the same offense.
quotation marks omitted).

56 M.J. at 827 (citation and

The Perkins court relied on

appellants pleas and statements during a thorough providence

inquiry to determine that the findings under the circumstances
were sufficient to intelligently discern the basis for the
findings.

Id.

Relying on Perkins the lower court in Trew held:

[W]e find the words used by the military judge to
frame her findings were not ambiguous when placed in
the context of the entire record. It is clear that
the military judge, counsel, and the appellant all
understood, and, at various times, used essentially
the same shorthand reference ultimately adopted by the
military judge. We, therefore, find that the military
judges announcement of the findings, while irregular,
clearly referred to the single incident on 26
September 2006.
Trew, 67 M.J. at 606.

The Court of Criminal Appeals also excepted the words

genitalia and and breasts but those exceptions are not
pertinent to our review. Trew, 67 M.J. at 606. The lower court
set aside and dismissed the findings as to the excepted
language. Id.
6

United States v. Trew, No. 09-0414/NA

Discussion
The granted issue addresses whether the Navy-Marine Corps
Court of Criminal Appeals could properly review Trews
conviction in light of the military judges clarification that
her findings were for the one occasion.

Trew argues that the

military judges failure to specify the incident that formed the

basis for his conviction prohibited the Court of Criminal
Appeals from conducting a proper review under Article 66, UCMJ.
Therefore, according to Trew, the Court of Criminal Appeals
erred when they reviewed the record to independently determine
which incident the military judge was referring to when she
responded to trial counsels request for a clarification.4
The Government responds that the military judges findings
were proper and her clarification did not modify the
specification but altered it only with respect to making
findings on the lesser included offense.

The Government also

argues that the military judges clarification could not alter

her original findings because her comment was not consistent
with Rule for Courts-Martial (R.C.M.) 918, which sets forth the
proper form for announcements of general findings.

Finally, the

Government argues that even if the military judges

In addition to Walters, Trew cites this Courts recent case law

on ambiguous findings in United States v. Seider, 60 M.J. 36
(C.A.A.F. 2004), and Wilson, 67 M.J. 423, in support of his
contention that the military judges findings were fatally
ambiguous.
7

United States v. Trew, No. 09-0414/NA

clarification created an ambiguity, this court should order a
proceeding in revision to clarify the findings rather than
setting aside the findings.
The threshold issue is the effect of the military judges
response to trial counsels request for a clarification of the
findings.

If the Government is correct and the clarification

had no effect on the findings, the Government has a credible

argument that the military judges findings were not ambiguous
and the Court of Criminal Appeals could properly affirm a
finding of guilty to one of the divers occasions under a
general verdict theory.

See United States v. Rodriguez, 66 M.J.

201, 203 (C.A.A.F. 2008).

If, however, Trew is correct that the

clarification resulted in an ambiguous verdict, we must then

analyze the case under Walters.
A finding on the guilt or innocence of the accused is not
final until it is formally and correctly announced in open
court.

United States v. London, 4 C.M.A. 90, 96, 15 C.M.R. 90,

96 (1954).

The general findings of a court-martial state

whether the accused is guilty of each offense charged.

918(a).

R.C.M.

One or more words or figures may be excepted from a

specification, and, when necessary, others substituted, if the

remaining language of the specification, with or without
substitutions, states an offense by the accused which is
punishable by court-martial.

R.C.M. 918(a)(1) Discussion.

If

United States v. Trew, No. 09-0414/NA

an error was made in the announcement of the findings of the
court-martial, the error may be corrected by a new announcement
in accordance with this rule.

The error must be discovered and

the new announcement made before the final adjournment of the

court-martial in the case.

R.C.M. 922(d).

We have stated, in

the context of a judge-alone trial, clarification of the

ambiguity can be accomplished by a clear statement on the record
by the military judge as to which alleged incident formed the
basis of the conviction.

Wilson, 67 M.J. at 428 (citation

omitted).
The military judges findings, when initially announced,
did not reference the charged divers occasions language.
However, trial counsel immediately asked for a clarification of
those findings with regard to the divers occasions language.
When the military judge responded, [i]t is on the one occasion
she made clear on the record that her findings as to the lesser
included offense were only applicable for one event, rather than
multiple incidents as charged.
The Government argues that this clarification cannot
function retroactively to modify her proper findings and cannot
act to set aside an element of the specification charged.

The

Government also suggests that the on the one occasion comment

does not amount to a formal announcement of the findings per
London.

However, R.C.M. 922 provides military judges with a

United States v. Trew, No. 09-0414/NA

mechanism to correct errors in the findings.

Under the facts of

this case, a formal recitation of exceptions and substitutions

was not necessary because of the military judges clarification
immediately following her announcement of the findings.

The

clarification, [i]t is on the one occasion, amounted to a

correction of the announcement of the findings as permitted by
R.C.M. 922.
Having determined that the military judges clarification
altered the findings and resulted in a finding of guilty to only
one occasion, we must now determine whether the Court of
Criminal Appeals could properly conduct an Article 66, UCMJ,
review.

Where the findings do not disclose the single occasion

on which the conviction is based, the Court of Criminal Appeals

cannot conduct a factual sufficiency review or affirm the
findings because it cannot determine which occasion the
servicemember was acquitted of.

Augspurger, 61 M.J. at 190.

Double jeopardy principles prohibit a reviewing court from

rehearing any incidents for which the accused was found not
guilty.

Wilson, 67 M.J. at 428 (citations omitted).

Courts

of Criminal Appeals may not perform an independent review of the

record to determine which of the possible incidents most likely
formed the basis for the conviction.

Id. (citation omitted).

However, a Court of Criminal Appeals may review the record to

determine if there was only a single possible incident that met

10

United States v. Trew, No. 09-0414/NA

all the details of the specification for which an appellant
was convicted.

Id.

In holding that the military judges finding while

irregular, clearly referred to the single incident on 26
September 2006, the Court of Criminal Appeals relied primarily
on comments made during a pretrial motions hearing.
M.J. at 606.

Trew, 67

The lower court found that during that hearing the

military judge and counsel repeatedly referred to the 26

September 2006 touching as the September incident.
605.

Id. at

It is true that the military judge, Government counsel,

and defense counsel referred to a September incident at the

motions hearing.

However, at that hearing the military judge

asked trial counsel, are you limiting your discussion to the

timeframe [sic] of September of 2006?

Trial counsel responded

[m]y discussion would be with respect to the charge as charged,

from the 1 March timeframe [sic] to the October timeframe [sic].
So, no, Im not limiting it to September.

Trial counsels

response clearly indicates that he was not limiting his

reference to a particular date.
In discussing their reliance on Perkins, the lower court
explained that [u]nlike Walters, the Perkins court did not
evaluate evidence in an attempt to dispel factual ambiguity, but
rather considered the record as a whole to clarify the meaning
and intent of the military judges words.

11

Id.

The lower court

United States v. Trew, No. 09-0414/NA

then distinguished the Walters line of cases finding that Trews
case was one in which an evaluation of the meaning of the words
used in the findings are assessed in the context of the trial.
Id.

The Court of Criminal Appeals distinction between

evaluat[ing] evidence and consider[ing] the record as a whole

to clarify the meaning and intent of the military judges words
appears to be a distinction without a difference.

The lower

court clearly went to the record of the pretrial motions hearing

and evaluated the statements of the parties in an attempt to
discern the meaning of the military judges clarification.

In

doing so they did exactly what they recognized they could not do
under Walters.

Id.

The Walters line of cases provides clear guidance to

military judges and the courts of criminal appeals regarding the
need for specificity in the findings.

However, once again we

find it necessary to restate that [b]oth trial practitioners

and military judges need to be aware of the potential for
ambiguous findings in such cases and take appropriate steps
through instruction and pre-announcement review of findings to
ensure that no ambiguity occurs.

Walters, 58 M.J. at 396.

Where a specification alleges wrongful acts on

divers occasions, the members must be instructed
that any findings by exceptions and substitutions that
remove the divers occasions language must clearly
reflect the specific instance of conduct upon which
their modified findings are based. That can generally
be accomplished through reference in the substituted
language to a relevant date or other facts in evidence

12

United States v. Trew, No. 09-0414/NA

that will clearly put the accused and the reviewing
courts on notice of what conduct served as the basis
for the findings.
Id.

As we have explained, a military judge can clarify an

ambiguity in the findings by making a clear statement on the

record as to which alleged incident formed the basis of the
conviction.

Wilson, 67 M.J. at 428 (citation omitted).

The Government charged Trew with indecent acts on divers

occasions, introduced evidence of more than one occasion, and
argued in both opening and closing statements that at least two
incidents had occurred.

When the military judge clarified that

her findings were for one occasion, she should have made a
clear statement on the record as to which alleged incident
formed the basis of the conviction under this Courts explicit
direction in Augspurger, Walters, Seider, and Wilson.

The

military judges failure to do so resulted in fatally ambiguous

findings.
The Government further argues that if this court were to
hold that the findings were ambiguous, instead of dismissing the
charges, we should remedy the ambiguity by ordering a proceeding
in revision pursuant to R.C.M. 1102(d).

This is a familiar

argument as the Government has unsuccessfully made the same

argument in Final Brief on Behalf of the United States, Seider,
60 M.J. 36 (No. 04-0082); Brief on Behalf of Appellee at 19-22,
Augspurger, 61 M.J. 189 (No. 04-0563); Final Brief on Behalf of

13

United States v. Trew, No. 09-0414/NA

Appellee at 30-32, Wilson, 67 M.J. 423 (No. 09-0010).

The

Governments argument in this case adds nothing new to the

assertions that have previously been made to and rejected by
this court.
As in Seider, Augspurger, and Wilson, the fatally ambiguous
findings by the military judge at Trews court-martial created
the possibility that the [reviewing] court would affirm a
finding of guilty based on an incident of which the appellant
had been acquitted by the factfinder at trial.
at 428.

Wilson, 67 M.J.

R.C.M. 1102(c)(1) plainly prohibits post-trial sessions

for reconsideration of a finding of not guilty to any

specification, or a ruling which amounts to a finding of not
guilty.

The military judges ambiguous findings amounted to a

not guilty finding on one of the instances raised by the divers

occasions charge.

Thus, a post-trial session to recast the

language of the military judge would amount to a re-assessment

of a not guilty verdict in violation of double jeopardy.

As in

Seider, Augspurger, and Wilson, the appropriate remedy for the

Walters violation at Trews court-martial is to set aside the
findings and dismiss the charges with prejudice.

14

United States v. Trew, No. 09-0414/NA

Conclusion
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed, the findings and sentence are
set aside, and the charge is dismissed with prejudice.

15

United States v. Trew, No. 09-0414/NA

STUCKY, Judge (concurring in the result):
Appellant was tried by general court-martial on a
specification alleging indecent acts with a child on divers
occasions between on or about March 1, 2006, and October 15,
2006.

Article 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. 934 (2006).1

The military judge acquitted him of the

charge, but found him guilty of the lesser included offense of

assault consummated by a battery upon a child, in violation of
Article 128, UCMJ, 10 U.S.C. 928 (2006).

The United States

Navy-Marine Corps Court of Criminal Appeals excepted the words

on divers occasions, genitalia, and and breasts from the
specification but otherwise affirmed the findings and sentence.
United States v. Trew, 67 M.J. 603, 606 (N-M. Ct. Crim. App.
2008).
The MCM listed assault consummated by a battery as a lesser
included offense of indecent acts with a child.
para. 87.d.(2).

MCM pt. IV,

However, the elements of the two offenses are

different, and proof of each requires proof of a fact that proof

of the other does not.

In the case of the Article 128, UCMJ,

offense of which Appellant was convicted, the elements include

1

As the offenses alleged took place prior to October 1, 2007,

the UCMJ and Manual for Courts-Martial, United States (2005 ed.)
(MCM) provisions existing prior to the 2006 amendment of Article
120, UCMJ, 10 U.S.C. 920 (2000), apply. See National Defense
Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163,

United States v. Trew, No. 09-0414/NA

(i) that the accused did bodily harm to a child under 16 and
(ii) that this bodily harm was done with unlawful violence or
force.

MCM pt. IV, para. 54.b.(3)(c).

Neither of these is an

element of indecent acts with a child under Article 134, UCMJ,

the offense with which Appellant was charged.

The elements of

the offense of indecent acts with a child under Article 134,

UCMJ, included (c) that Appellants act was indecent; (d) was
committed with the intent to arouse, appeal to or gratify his or
the victims lust, passions or sexual desires; and (e) that
under the circumstances, the conduct was to the prejudice of
good order and discipline or was of a nature to bring discredit
upon the armed forces.

MCM pt. IV, para. 87.b.(1).

These

elements are not required to prove assault consummated by a

battery under Article 128, UCMJ.
Since the elements test is the proper one for determining
lesser included offenses, see United States v. Teters, 37 M.J.
370, 376 (C.A.A.F. 1993), and the Article 128, UCMJ, conviction
here does not pass that test, it follows that Appellant could
not be convicted of the Article 128, UCMJ, offense as a lesser
included offense of indecent acts with a child under Article
134, UCMJ.

United States v. McCracken, 67 M.J. 467, 469

552, 119 Stat. 3136, 3257 (2006) (codified as amended at 10

U.S.C. 920 (2006)).
2

United States v. Trew, No. 09-0414/NA

(C.A.A.F. 2009) (Stucky, J., concurring in part and dissenting

in part).
I concur in the result.